CAPITULO V - Análisis de las Ventajas Competitivas Nacionales en la
V.1.4 Estrategia, estructura y rivalidad de las empresas
19 ibid at 47 20 ibid para 4, 88
21 J. A. Priest, ‘Assisted Reproduction – Developments in England’ (1988) International & Comparative Law Quarterly at 535
22 M. Brazier, ‘Regulating the Reproduction Business’ (1999) (7) Medical Law Review at 169 23 n. 14, Recommendation 59 at 86
44
Several years later, the Surrogacy Arrangements Act (SAA) 1985 was enacted. The objective of the SAA 1985 enacted as a result of the Warnock Report and public outcry to the Kim Cotton case, was to prohibit the practice of surrogacy from becoming a commercial enterprise. This is effectively summarised by
Jacqueline Priest: ‘[t]he government’s explicit intention was to deal swiftly with what was perceived to be the most repugnant manifestation of surrogacy’24 – that
is, commercial surrogacy. The SAA 1985 explicitly prohibits and imposes a blanket ban on commercial surrogacy. Section 2 of the Act states that no person shall on a commercial basis initiate or take part in any negotiations regarding the surrogacy arrangement (s. 2 (1)(a)), offer or agree to negotiate (s. 2 (1)(b)), or compile any information with a view to negotiating a surrogacy arrangement (s. 2 (1)(c)). However, section 2 (2) states that no criminal offence shall be imposed on either the surrogate or the commissioning party should they enter into a commercial agreement in order to prevent association between the birth of a child and criminality. The involvement of money within agreements is not entirely
prohibited. Reasonable expenses paid to the surrogate are permitted in order to reimburse any loss the surrogate may have incurred, for example, loss of earnings. The central purpose of the Act was therefore to prohibit the possibility of the commodification of childbirth. However, while surrogacy arrangements may be lawful, they are not contractually enforceable. As Shaun Pattinson notes, [t]he commissioning couple cannot sue for damages or performance, and the surrogate cannot sue for payment. This legal vulnerability is intended to discourage
surrogacy arrangements,’25 as desired by the Warnock Committee.
The SAA 1985 was effectively a symbolic piece of legislation, responding to social discomfort towards ‘baby-selling’ as evidenced by the feminist response to surrogacy as outlined earlier. The legal parameters of the Act do not extend beyond commercial surrogacy and therefore altruistic arrangements remain unregulated. In 1990, the SAA was incorporated into the Human Fertilisation and Embryology Act (the HFE Act) 1990. The HFE Act was the first regulatory
instrument to govern human fertilisation and embryology. The purpose of the Act is to control and monitor reproductive research and clinical practices. As
24 n. 21 at 545
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surrogacy arrangements may utilise in vitro fertilisation or artificial insemination requiring a sperm donor, the practice is within the jurisdiction of the Act.
However, a surrogacy agreement arranged within the private domain using the surrogate’s egg fertilised in vivo without the aid of medical assistance remains unregulated. Ultimately, practice of surrogacy remains largely unregulated, despite an increase in popularity.26 The decision to allow surrogacy to remain
unregulated signifies the discouragement of a complex peripheral reproductive method in favour of the hetero-normative family structure. Surrogacy is thus regulated indirectly in the context of assisted reproductive medicine. If the surrogacy arrangement does not incorporate medical treatment such as IVF, the arrangement is wholly unregulated.
Unlike the SAA 1985, the HFE Act 1990 (as amended by the HFE Act 2008) defines legal parentage and how parentage may be transferred when assisted reproductive methods are used. In 2008, the HFE Act 1990 was subject to an extensive review process, because ‘it was never expected that the Act would remain unchanged in this area of fast-moving science’27 and ‘was faced with the
challenges of trying to keep up with the fast past of change…also in respect of society’s expectations and demands.’28 Lord Darzi presenting the HFE Bill 2007
before the House of Lords stated that the ‘aim in undertaking this review was to ensure that the law remained effective and fit for purpose in the 21st century.’29
The practice of surrogacy, however, received very little attention. As a result of the 2008 reform, same-sex couples can now recognised in law as the legal parents of a child both in the context of IVF/donor insemination used by lesbian partnerships and surrogacy used by gay men to become biological parents. However, in relation to default legal status as a mother, the legal framework remains unchanged. The
26 Robin Mackenzie, (‘Beyond genetic and gestational dualities: Surrogacy arrangements, legal
parenthood and choice in family formation, in K. Horsey, H. Biggs (eds) Human Fertilisation and
Embryology: Reproducing Regulation (Routledge-Cavendish, 2007) 190) argues that demand for
surrogacy will ‘inevitably rise’ due to modern factors such as environmentally induced falls in sperm counts, the decline in fertility and gamete quality after the age of thirty five, tendency towards delayed parenthood, infertility due to sexually transmitted diseases, the wish of the socially infertile to become parents such as gay and lesbian couples, a cultural rejection of childlessness and a decreasing number of children, especially babies put up for adoption.
27 Department of Health, Review of the Human Fertilisation and Embryology Act: a Public Consultation (2005)
28 D. Birk, Human Fertilisation and Embryology Act: The New Law (Family Law 2009) at 4 29 HL Deb 19 November 2007 Column 664
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gestational mother as outlined in Chapter One is the legal mother30. No other
mother is recognised as a default legal position, although parentage can be transferred (as will be discussed below). This legal framework therefore only offers legal protection to surrogates who receive medical treatment and their associated commissioning party. This is primarily because the surrogate is viewed as a patient whose interests should be protected throughout the course of
treatment. As the surrogate is receiving medical treatment, there is a clinical obligation to protect her interests. This is evidenced by s. 27 of the HFEA Act 1990 which states that the legal mother of the child is the gestational mother. Excluding reasons for this based upon constructions of motherhood, the legal status of the surrogate is protected in her role as a patient.
The legal status of fathers however is not so clear in the context of
surrogacy. The surrogate’s husband does not typically contribute to the existence of the child, either biologically or socially, however - by virtue of marriage - the surrogate’s husband is the legal father of the child born through surrogacy.31 If the
surrogate is married, the legal status of the commissioning male cannot be
recognised even though he may be the biological father. When the surrogate is not married, or her husband does not provide his consent, section 36 of the HFE Act applies ‘where no man is the father by virtue of s. 35 (i.e. there is no consenting husband) and no woman is the other parent by virtue of s. 42 (i.e. there is no consenting civil partner).’32 Under the agreed fatherhood provisions detailed in s.
37 of the HFE Act 2008, where treatment is provided to a woman, a man may be treated as a legal father providing that both consent to this in writing.
The HFE Act 1990 (as amended by the 2008 Act) requires any desired treatment such as IVF as part of the surrogacy arrangement to be carried out by a licensed fertility clinic. If a donor or the commissioning mother’s egg is used, IVF treatment must be carried out by a licensed clinic which is governed by the Human Fertilisation and Embryology Authority33 and its Code of Practice34. It is
30 s. 27 HFE Act 1990 as amended by the 2008 Act
31 Section 35-37 of the HFE Act 2008 outlines the fatherhood provisions. Section 35 states that the
husband of the surrogate is the legal father, but only if he willingly consents to her treatment.
32 n. 25 at 305
33 See <http://www.hfea.gov.uk> regarding the Human Fertilisation and Embryology Authority,
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important to note however that current government plans to abolish the HFE Authority are underway. At the time of writing, it is suggested that the HFE Authority may be consumed by another regulatory body however this remains uncertain and does not require further discussion here35. A licensed fertility clinic
may provide treatment for a number of purposes in the context of surrogacy. Treatment may be provided using gametes, except when it is partner-donated sperm that has been neither processed nor stored (s. 4 (1) (b) HFE Act 2008) to allow the process of in vitro fertilisation. Robin Mackenzie succinctly summarizes the criteria which must be satisfied in order for treatment to be carried:
‘Where surrogacy involves IVF, it is subject under the Human Fertilisation and Embryology Authority Code of Practice to quality control provisions over the sperm used, as well as to criteria for treatment and supervision by the clinic of hospital’s independent ethics committee, and is provided only after the welfare principle of the child-to-be, and the children of the gestational mother and those commissioning the pregnancy has been taken into account’.36
Treatment will only commence when significant consideration has been given to various factors. For example, the welfare principle must be satisfied prior to the award of a treatment licence. The welfare principle is effectively a best
interests test and seeks to determine whether it would be in the best interests of
the child to be cared for by those applying for treatment. The HFEA’s Code of Practice provides guidance on how this test must applied in order to assess whether there is ‘a risk of significant harm or neglect to any child’ who is not yet born, or already in existence and in the care of the surrogate or the commissioning party.37 Factors to be taken into consideration to highlight any significant risk of
harm include previous criminal convictions, mental or physical conditions, and a commitment to wellbeing and health of the child’.38 Further, section 13(5) HFE Act
34 HFEA, Code of Practice 8th ed http://www.hfea.gov.uk/3401.html
35 See, Public Administration Committee - Fifth Report Smaller Government: Shrinking the Quango
State (December 2010); V. Raper, ‘Leaked letter ‘proves’ fertility watchdog faces last bark’ BioNews (September 2010) <http://www.bionews.org.uk/page_71303.asp> accessed 01 January 2011
36 n. 26 at 187-88
37 n. 34 ‘Guidance Notes, The Welfare Principle’ para 8.3
<http://www.hfea.gov.uk/docs/complete_CoP8.pdf > accessed 01 January 2011
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1990 (as amended by s. 14 (2) (b) HFE Act 2008) states that the ‘need for
supportive parenting’ must also be taken in to account. This amendment, replacing the consideration of ‘the need for a father’, broadens the scope of the Act to be inclusive of same-sex couples and their desire to have a family. John Sentamu argued that the government placed the ‘right to be a parent over the welfare of the child’39 through its amendment of the welfare principle. However, a move away
from the hetero-normative family structure represents a greater understanding of the welfare of the child and reflects progressive societal attitudes towards non- normative families.
On the other hand, the welfare principle and how the welfare of the child is assessed is in itself not without criticism. Emily Jackson’s work reflects critically upon the welfare principle, raising questions such as: ‘How could it be possible to base a decision upon whether to try to bring a child into the world upon
assessment of that child’s best interests?’40 Jackson’s argument implies that the
welfare principle is nonsensical, as we cannot know what would be in the best interests of that child as it simply does not exist. In order to determine the best interests of a non-existent child, presumptive moral judgements must be made with regard to what would be in the best interests of the child should that child exist? Further, Jackson adds: ‘Infertility clinicians do not receive training in addressing future parenting ability and nor will they have access to the sort of detailed information that might be necessary to make such a complicated
assessment’41 emphasising the disingenuity of the welfare test. It is not contested
here that the welfare of a child should be a primary consideration when awarding a treatment licence, however an improved welfare test is required if the test to function adequately instead of acting as an arbitrary mechanism used
discriminately against those who wish to cannot carry out reproductive decisions within the private sphere. Jackson argues,
‘[m]onitoring these exceptional personal choices in order to identify ill-judged or improper conception decisions would be unreservedly
39 A. Blackburn-Starza, ‘Lords criticise proposals to remove the ‘need for a father’ BioNews
(November, 2007) <http://www.bionews.org.uk/page_13244.asp> accessed 01 January 2011
40 E. Jackson, ’Rethinking the preconception welfare principle’ in K. Horsey, H. Biggs, Human Fertilisation and Embryology: Reproducing Regulation (Routledge-Cavendish: 2007) 49 41 n. 40 at 53
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condemned as an unacceptably intrusive abuse of state power if the welfare principle was applied to those couples who were able to conceive without the aid of reproductive treatment’.42
In relation to surrogacy, this argument extends further. The best interests test is applied only to those who seek medical treatment as part of the agreement. Arrangements which do not involve medical intervention are unregulated and are not placed under the scrutiny of the test. This suggests that there is now a two-tier system of regulation. Uncomfortable social response to surrogacy led to legislation which chose not to recognise surrogacy. The legislative response to surrogacy aimed to discourage this process, however surrogacy legislation could not be avoided in the context of medical treatment. Moreover, this inconsistency of legal regulation renders the welfare principle ineffective in its aim to protect the best interests of the child as not all arrangements are monitored. The welfare principle requires further consideration. Greater training should be offered to clinicians and the application of the best interests tests need to be re-examined. At present, the best interests test monitors non-normative families who seek medical
reproductive treatment. Those who do not require medical treatment and make decisions within the private sphere akin to the hetero-normative family structure remain unregulated, highlightsing an adequate yet unclear legal framework. As a result of this, the HFE Act 1990 has undergone considerable scrutiny, both in 1998 and more recently in 2008. The Brazier Report in 1998, similar to the Warnock Report in 1984 will now be considered to access the impact of the SAA 1985 and HFE Act 1990 and the criticisms received.